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HomeMy WebLinkAbout2961-226 01-28-09; 17:20 13603794451 # 1/ 16 G JlA;4 ~ V\r~~~ Dennis D. Reynolds Law Office 200 Winslow Way W. Suite 380 Bainbridge Island, wA 98110 Land Uk . l'eshl:rics Law' Environmenm[ uw' ~imm Law' Indian 'L;,w . Rt;'.allistate 206.780.6777 206.780.6865 fax ww.ddrliIW.a.m L.q1p1 @ FAX COVER SHEET NAM~ COMPANY TEL NO. PAX NO. Jefferson County Planning Commission c/o Jefferson County Department of C01nmunity Development (360) 3794450 (360) 379-44S1 FROM: DENNIS D. REYNOLDS RE: Pr~liminary Draft SMP (December 3. 2008) DATE; JANUARY 28. 2009 TOTAL NO. PAGES / to (including this cover sheet) o Original will not follow )f Original will ~PS/Hand Delivered o Please respond ATTACIffiDlS/ARE THE FOLLOWING: >> Dahlgren Comment Letter on Preliminary Draft SMP. {' RECEiVED JAM 2 g 2U09 JEffERSON COUNTY OeD PRIVILEGED AND CONFIDENTIAl. ATTORNEY WORK PRODUCT f ATTORNEY-CLIENT PRIVILEGES AP)PL Y This facsimile message is privileged and COfIfldenlial attorney work produCllhat is intended solely far the lIllC of the ind.ivi(lpals and/or entities Ilamed above. If you are not a named and inlendcd mlipicnl, yuu lire hereby advised that any 1l1lO, d.issemination. distribution or copying of !his commllllicauOll is prohibilt:d withuulthe expreli& authorization of the SClldor. If you have rcecived this FAX in llITUr, pkwic immediately notify !he sender by telephone and mturn the original FAX message to the sender by U.S. mail. 01-28-09; 17:20 13603794451 # 2/ 16 Dennis D. Reynolds Law Office 200 Winslow Way W. Suite 380 Bainbridge Island. WA 98110 land Use' Ashenes Law . Envirnl1mootal Law . Busllless L,w . lndi<ln Law . Real Est:lte 2fJf..780.6m 206.7$0.6865 fiIx _ddrbtw.rom January 28, 2009 Via Facsimile (360/379-4451) and u.s. Mail Jefferson County Planning Commission c/o Jefferson County Department of Community Development Long Range Planning 621 Sheridan Street Port Townsend, W A 98368 RECEIVED Js~N 2 8 2G~9 Re: Preliminary Draft SMP (December 3. 2008) JEffERSON COUNTY OCD Dear Members of the Planning Commission: I represent Scott and Erin Dahlgren. Mr. and Mrs. Dahlgren own waterfront on Marrowstone Island. Their property is developed with beach access and two small cabins. III the future, they envision building a home along the 7S foot setback line used for the current development, either by adding an addition to one of the existing structures or constructing a separate new development. Mr. ~d Mrs. Dahlgren beHeve that the current draft of the revised Jefferson County Shoreline Master Program (8MP) is overly broad, conf1i<..1s with the general1aws of the s1ate~ is internally inconsistent and inconsistent with the Comprehen~ive Land Use plan, and violates the state law mandate to regulate shoreline areas exclusively under the Shoreline Management Act. They generally endorse the comments of the many citizens and shoreline property owners who oppose generic buffers and vegetation set asides. See. e.g.. Comments of Olympic Stewardship Foundation (UOSF") dated January 21, 2009. Contrary to public statements made by some County officials, the proposed Draft SMP regulates existing uses and relegates the built environment to a disfavored status. Specifically, imposition of the proposed 150 foot generic shoreline butler would make all existing development within Shoreline Management Act jurisdiction in Jefferson County n011- confonning, a highly disfavored treatment. For the Dablgrens, this would severely constrain future development or redevelopment on their shoreline property. In reviewing some of the comments to date, Mr. and Mrs. Dahlgren urge that the Planning Commission focus on substance. Some comments appear to assign motives or intent to property owners who suggest that the Dmft SMP has problems. My clients have a strong commitment to the shoreline environment. For instance, their existing development is well set back from the ordinary high water mark. To take the position ~hat shoreline regulation should be balanced is a vote for good government and responsible public administration ofthe law. Mr. and Mrs. Dahlgren do not want to be labeled "anti-environment" or "property right activi'sts" simply because they believe that existing regulatory systems can solve many of the concerns expressed by Staff, or that when considering appropriate shoreline regulation, the rights of the public to rea.'lOnably develop and use shoreline property must be taken into consideration. [90065-1] 01-28-09;17:20 13603794451 .'.,. " " # 3/ 16 1RECEKVED~ Jefferson County Planning Commission January 28, 2009 Page 2 JAN 2 g 2009 JHftRSON COUNTY DeD SUMMARY OF COMMENTS Impermissible Blat Against Single-Family Home Construction and Use. The State Guidelines for revision of a SMP establish a preference for uses that are unique to or dependent on a shoreline location. See WAC 123-26-201(d); WAC 173-26-176; WAC 173-26-020. According to the State guidelines, "single family residences are the most cornman form of shoreline development and are identified as a priority use when developed in a manner consistent with control of pollution and prevention. of damage to the natural environment." WAC 173-26- 241(3)0). The Dmft SMP as set out below exhibits a bias against single-family homes and appurtenant structure.~, such as protective bulkheads, beach access stairs and docks. This approach is not supportable based on the State Guidelines. Illegal Integration. Staffvia wholesale integration of the existing Jeffenion County Critical Areas Ordinance, JCC Chapter 18.22 ("the CAD") into the Draft SMP proposes to essentially designate aq "critical areas" all marine near shore areas. This approach is illegal in the opinion of Mr. and Mrs. Dahlgren. Shoreline areas are exclusively regulated under the Shoreline Management Act ("SMA"), not under CADs adopted pursuant to the Growth Management Act ("GMA"). At most, the CAO should be a reference or starting point when enacting shoreline use regulations. It is also not supported by the record. There is no showing in the record that all marine or shoreline areas in Jefferson County arc "critical areas:!) As set out in the OSF Comment Letter, there are significant differences between upland critical areas and marine areas and the ecological functions which are the tar.get of protection. The County should defer consideration of the draft SMP until a more thorough Shoreline Inventory and Cumulative Impact Analysis is prepared. Once this is done, more reasoned choices can be made as to ~ possible integration of some discrete seetiuns of the CAO to ensure adequate protection of shoreline ecological functions. Overdesignation. The proposal to make all marine areas and associated uplands a , "critical area" under the GMA is over-inclusive and not supported by the record. Under relevant criteria enacted by the Washington Department of Community, Trade and Economic . Development, not all near shore areas are "critical" fish and wildlife areas. Such arcas mU:1lt exhibit truly high functions and value for fish and wildlife to qualify for such a designation. See State Guidelines, WAC 173-26-221(2)(h)(c)(f)(ii). The Existing Regulatory System is Workin.g. Mr. and Mrs. Dahlgren are concerned with the time and expense associated with promulgation and administration of an expansive new shoreline regulatory system. They believe that the existing Statc Environmental Policy Act . ("SEP An) review process and the permit sYb1em established under the current SMP, combined with State and Federal regulatory systems, are adequately protecting marine and near shore areas from harm. These regulatory programs are set out in the Comprehensive Land Use :rlan, Table 8.2, pp. 8-3, 8-4. There is no analysis in the record which shows that the existing regulatory system is inadequate, thereby requiring adoption of a new SMP over three times the length of the existing document. [90065.1) 01-28-09;17:20 13603794451 # 4/ 16 Jefferson County Planning Commission January 28, 2009 Page 3 It is submitted that Jefferson County should have confidence that its existing environmental review and permitting systems will prevent hann to the aquatic environment absent documentation to the contrary. These systems take away the need to impose generic regulatory measures, such Wi the proposed largc shoreline buffers and vegetation set asides. Generic Buffers and Set Asides Are IllegaL The Courts have struck down generic set aside.~, such as large buffer and native vegetation zones. See asp Comment Letter. Thus, these generic devices should be discarded. The State Guidelines encourage buffen; (WAC 179-26-221 (2)(a),) but Jefferson County already has in place adequate shoreline setbacks or buffers. illegal Forced Restoration_ The staff approach is an unprecedented expansion of regulation under the SMA, and derivatively the OMA. which is not supported by the law or facts. The suggested approach, if adopted, makes the extensively developed shoreline areas of Jefferson County non-conforming, especially Eastern Jefferson County, a status highly disfavored in the law, since non-conforming m;es must be phased out if discontinued. or . extensively damaged or destroyed. THE SMA STANDARDS FOR REGULATION The State Guidelines for revising SMPs acknowledge that there is a "balance" in the SMA regarding the use and development of the shorelines: The policy goals for the management of shorelines harbor potential for conflict. The act recognizes that the shorelines and the waters they encompass arc "among the most valuable and fragile" of the REC E IVED state's natural resources. They arc valuable for economically productive industrial and commercial uses, recreation, navigation, residential amenity, scientific research and education. They are JAN 2 3 2n09 fragile because they depend upon balanced physical. biological, and chemical systems that may be adversely altered by natU!'.ll forces (earthquakes, volcanic eruptions, landslides. storms, JEffERSON COUNlY Den droughts, floods) and human conduct (industrial, commercial. residential, recreation) navigational). Unbridled use of shorelines ultimately could destroy their utility and value. The prohibition of all use of shorelines also could eliminate their human utility and value. Thus. the policy goals of the act relate both to utilization and protet.1:ion of the extremely valuable and vuhlerable shoreline resources of the state. The act calls for the accommodation of "all reasonable and appropriate uses" consistent with J4protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life" and consistent with "public rights of navigation." The act's policy of achieving both shoreline utili7..ation and protection [9006S-1} 01-28-09;17:20 13603794451 # 5/ 16 Jeffenson County Plartning Commission January 28, 2009 Page 4 is reilected in the provision tha.t "pennitted uses in the shorelines of the state shan be designed and conducted in a manner to JIlin;mh:c, in so far as practical, any resultant damage to the ecology and enviromnent of the shoreline area and the public.s use of the water." RCW 90.58.020. WAC 173-26-176(2). The quoted language from the State Guidelines is based upon a long series of cases which have construed the SMA as allowing reasonable use and development of the shorelines of the state. As a general matter, the SMA declares that it "is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonablc and appropriate uses." See RCW 90.58.020. According to this State's highest court, The SMA doe..~ not prohibit development of the state 's 8h(Jreline.~; but calls instead for ~~coordinated planning. . . recognizing and protecting private property rights cOllSistcnt with the public interel:lt. " Ni.'iqually Delta A,i/s'n v. City of DuPont, 103 Wn.2d 720, 727, 696 P.2d 1222 (1985) (emphasis added); see also RCW 90.58.020. The policy of the SMA as set forth in RCW 90.58.020 strikes a balance between protection of the shoreline environment and reasonable and appropriate use of the waters of the state and their associated shoreline. This balance is recognized by the Washington Supreme Court: The SMA is to be broadly construed in order to protect the state shorelines a.~ fully as possible. The policy of the SMA was based upon the recognition that shorelines are wd-gile and that the increasing pressure of additional uses being placed on them necessitated increa.c;ed coordination in their management and development. The SMA provides that it is the policy of the State to provide for the management of the shorelines by planning for and fostering all "reasonable and appropriate uses". This policy contemplates protecting against adverse effectll; to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally the public right of navigatioll and corollary rights incidenta1theretu. Buechel v. State Department afEcology. 125 Wn.2d 196, 203, 884 P.2d 910 (1994). RECEIVED [90065-1 ] JAli 2 8 2009 ~.. JEH1.8SUN JJUJIll' nw 01-28-09;17:20 13603794451 # 6/ 16 Jefferson County Planning Commission January 28, 2009 Page 5 The balanct' envisioned by the SMA anticipates that there will be some impact to shoreline areas by new development or continued use, repair and maintcnance of existing structures or developments: "[a]ltcrations of the natural conditions of the shorelines and shorclands shall be recognized by the department." See RCW 90.58.020. The counterbalance to this shoreline development is the requirement that "lp ]ermitted uses in the shorelines of the state . . . be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of.the shoreline area. . . ." [d. INTERNAL INCONSISTENCY Review of a new or revised SMP is measured only against compliance with the policies and requirements of the SMA and the Shoreline Guidelines (WAC Chapter 173-26) and the "internal consistency" provisions of the Growth Management Act ("GMA"), RCW 36.70A.070. RCW 36.70A.040(4), RCW 35.63.125 and RCW 35A.63.105. See RCW 90.58.190(2)(b); RCW 36.70A.480(3). What this means is that a SMP must bc consistent with Comprehensive Plan policies and its (')Wll provisions must be internally consistent. The Comprehensive Plan itself is internally consistent; the Draft SMP is not. The Draft SMP unduly empha.qi?:e$ environmental protection and preservation over all other goals and objectives. Significant redrafting is required ifthe County is to adopt a revised SMP that is internally consistent with the goals 8ud objectives of the Comprehensive Land Use Plan. The purpose of the Plan is of relevance: This Comprehensive Plan has been crafted to incorporate the lessons leamed in a difficult planning process. It is thc intent of this Plan to accept and build on the difficulties of the past; identifY appropriate solutions consistent with relevant laws, decisions, adopted policies, and community involvement; and propose a responsible strategy with which the County can effectively face the futurt'. Plan, p. 1.1. As the Planning Commission can see, proposals for shorelille management must be consistent with relevant laws, decisions and adopted policies. The GMA also provide.'1 significant protections for private property right<;. Not only must private property rights not be taken for public'use without just compensation, but the rights ofland owners "shall be protected from arbitrary and discrin:rlriatory actions." RCW 36.70A.020(6); Comprehensive Plan, p. 1.9. The Plan also has strong policies to protect existing lots of record and property rights. Plan, pp. 3-4. 3-17. RECEnlED JAi~ 2 8 2DTI9 19006S-1) JEffERSON COUNTY OeD 01-28-09; 17:20 13603794451 # 7/ 16 Jefferson County Planning Commission January 28, 2009 Page 6 Mr. and Mrs. Dahlgren believe that the Draft SMP's treatment of nonconforming uses and existing lots of record is inconsistent with the Comprehensive Plan. The Plan recognh:es existing lots ofrec:ord as "legallots,'~ but the Draft SMP's imposition of generic buffers, and other requirements to maintain vegetation effeL1:1vely preclude development on existing lots of record, such as their o'Wtlership. ;" The Comprehensive Plan has strong policies that developmental regulations and procedures intended to protect environmental quality minimize the "economic impact on the dcvelopnlwt of housing." Plan, p. 5-13 (Polices, HSP 2.1). The Plan's use of generic buffers and vegetation set asides directly conflicts with the stated policy. There are also other provisions of the Draft SMP which conflict with this policy, including those severely limiting exemptions for the construction of new single-family homes, tlle repair and maintenance of existing facilities, construction of new single family protective bulkheads, and a stated bias against private recreational docks, among many other provisions. lLl.EGAL ADMINISTRATION OF EXEMPTIONS The Draft SMP's provisions for administration of exemptions found in Article 1. Section 2, and Article 10, go well beyond the bounds of the law. Jefferson County does not have the authority to "regulate" SMA exemptions in a way to effectively treat exemptions as permits. The Draft SMP deals with exemptions as pennits, when in faL1: issuance of exemption is a ministerial act. For instance. the Draft SMP pTovides in several sections that shoreline exemptions must be "consistent with this program." Dr.aft, pp 9-1, 9-6. This language mandates compliance with all provisions of the SMP, including its use regulations, notju~i policies. The ShoTeline Hearings Board struck down a similar process when it invalidated the SMA Rules; Part m of the guidelines regulates exempt uses by requiring that local governments issue letters of exemption to cover activities that arc not subjet.1: to pennit requirements. Those letters must set forth a statement that "All uses and development occurring within the shorelinejurisdietionmust confonn to ehapter 90.58 RCW, the Shoreline Management Act and this master program." WAC 173- 27-190(2)(3)(iii)(A). Part IV of the guidelines Tequires, in the case of exempt developments, that the letter of exemption include conditions "where necessary to ensure that the deve'lopment docs not cause significant ecological impacts or contribute to potential adverse cumulative impacts. " WAC l73-27-300(2)(g)(i}. Under Part IV, the master program must include a mechanism for assuring that the development meets the mitigation requirements of the letter of exemption. This may include a performance bond. WAC 173-27-300(2)(g)(ii). Local governments must also provide a means for final inspet.1ion of exempted development and send the results of final inspections to Ecology. RECEIVED J UI I) 0 'j\'1V!'! i'll'lJ ~ G &":c",,,J [9006S-I} JHfERSON COUNTY DeD 01-28-09; 17: 20 13603794451 # 8/ 16 RECEIVED Jefferson County Planning Commission January 28~ 2009 Page 7 JAN 2 13 2009 ,JfHERSDN COUNTY OeD **** The provisions governing letters of exemption under [Department of Ecology Guidelines} exceed the ~1atutory authority of the SMA. The provisions are therefore invalid. The [required] letter of exemption operates as a pennit. It sets forth conditions and requires enforcement mechanisms for those conditions including, possibly, a bond. Thesc tcnns creu.te a new pcnnitting process for activities that are specifically exempt from shoreline pennit requirements. The letter of exemption created [by Ecology] is also devoid of the procedural requirements of a shoreline pcnnit, or fOT that matter, any other land use permit. Additionally, the conditioned letters of exemption do not give notice to the public a.., reqUired under RCW 90.58.140 or an opportunity to appeal the terms of the letter of exemption under the SMA, RCW 90.58.140 or an opportunity to appeal the tennij of the letter of exemption under the SMA, RCW 905ft 180(1), tor the pennitee [sicj or an aggrieved third party. Putnam v. Carroll, 13 Wn. App. 201 (1975). Because the new guidelines [by Ecology] essentially create a pennit for activities that fire specifically exempt tor shoreline pennits, [they are] invalid. See SHB Case No. 00-037 (Ordm-Granting and Denying Appeal, 2001); 2001 WL 1022097. EXEMPTIONS My client's have significant concerns with the Draft SMP's treatment of exemptions from shoreline substantial development permits. Their major point is that under the SMA, the County cannot require that an exempt facility be"consistent with the policies and provisions of this program." The provisioml of the SMP include use regulations. By applying the use regulations, Jefferson County impennissibly turns an application for an exemption into a permit, a process which the Slm has already strock down. It is noted that when the County issues a building penuit, the Draft SMP provides there is no need for a statement of exemption for a single family residence. However, this may not mean much, since a written exemption is required fOT any "clearing and ground disturbing activities." (Draft, p. 9-6). There are significant problems with Subsection B in Article 6. One, the requirement that even exempt structures be locat~ designed, constructed and conducted and maintained in a manner that maintains shoreHne ecological proce.tt!iles and functions may not be fully workable and could violate the SMA. In particular, some residential bulkheads or other appurtenances allowed to be c:on!!ltructed under exemptions may have at least a small mcasureable impact on shoreline ecological processes and functions.' The qUe1;.'tlon becomes protection of property and persons balanced against protection of the shoreline environment. The Washington Legislature 190065.1 ] 01-28-09;17:20 13603794451 # 9/ 16 RECEIVED) Jefferson County Planning Commis~ion January 28, 2009 Page 8 JAN 2 8 20D9 JEffERSON COUNTY DeD has already madt'l this choice in terms of allowing exempt activities, including development of single family homes on shorelines, and protection through bulkheads. My clients believe that Jefferson County docs not have any authority to require a shoreline property owner to remove existing bulkheads. Under SMA exemptions for repair and maintenance of existing structures, existing bulkheads that were legally pennittcd, and other developments legally permitted or which predate adoption of the SMA in 1971, can be repaired and maintained. While thc COllllty may be able to "encourage" shoreline property owners to remove such structures through a redevelopment process, it cannot be mandated. The regulations for existing structural armoring are over preclusive and would not survive legal challenge, in my opinion. These regulations start at p.7"30 of the Dmft The proposed regulations state that existing structural shoreline armory may be ''replaced in kind if there is a demonstrated need to protect puhlic transportation infrastructure, essential public facilities, and primary structures from erosions caused by currents, tidal action, or waves." Other requirements apply, including that the replacement s1:ruL1ure be designed, located, sized and constructed to ~ure no net loss of ecological functions. TheISt: provisions conflict with the SMA requirements for repair and maintenance of existing structures, which is exempt from SMA regulation in terms of a shoreline substantial development approval. Also, they are not consistent with the State Guidelines. WAC 173-26-231 (3){a){iii)(c). Nor are lhey intemally consistent with the exemptions found in the Draft at page 9-2. . The water oriented m-;e/development section needs more work. The redrafting should also deal with the definitions of these terms found at pages 2-42 and 2-43 of the draft. In particular, it should be explicitly set out that single family residential development which is exempt under the SMA is deemed a "priority use." Mr. and Mrs. Dahlgren suggest that the County provide a clear definition of appurtenances which fall within the single-family home residential exemption. In this regard, the SMA exempts from its pennitting requirements construction on shorelines by an owner, lessee or contract purchaser "of a single-family residence for his own use or the use ofms or her family." RCW 90.58.030(3)(e)(vi). This includes "appurtenant" structures. WAC 173w27- 040(2)(g). Normal appw1enances associated with a single-family waterfront home include garages, decks, driveways, beach access structures,landscaping, sport courts, mooring buoys, etc. These should be specifically listed in the Draft SMP as permitted appurtenances which arc ~'sub!lumed" into the single-family residential exemption. ILLEGAL INTEGRA'flON This subsection 6 of Article 1 is patently illegal and unnecessary. The public may properly ask, "What is the point of revising the SMP, if the Jefferson County CAO regulations are adopted by wholesale reference, and the most restrictive requirements apply?" The standards for upland critical area regulation, and the context, differ substantially from SMA regulations [90065-1] 01-28-09;17:20 13603794451 . !t10/16 1':')) .E" ',."" C""I,E' ,~"\\,li"rO, ,", D." ~,' ft Jl ~! !U /, Jefferson County Planning Commission January 28, 2009 Page 9 JAN 2 B 20llS JEffERSON COUNTY OeD and the shoreline environment. 'Further~ there is no showing in any of the dOCllnlents prepared to date by Jefferson County, including the Shoreline Inventory, that all areas regulated hy the SMA are "critical areas" as those tcnns are, defined by the GMA. , NON-CON}'ORMING USES AND DEVELOPMENTS By deeming all shoreline areas "critical areas," the County effectively makes thc existing built environment nonconforming. This is a highly disfavored status under the law. For instance, if discontinued, a non-confonning use is deemed lost forever. Further, in the Draft SMP, pp.10-6, 10-7, it is specified that non-confonning development mu.~t meet current standards if damaged more than 75%. No change of use is allowed except via a conditional use pennit. Draft, p. 10-8. Any use approved by a CUP must collfonn to new requirements. Draft p.10-6. No replacement of non-conforming building or structures is allowed in the Aquatic or Priority Aquatic designations without meeting new requirements. Draft, p. 10-6. The restrictions in these shoreline environments are so severe that abandonment of existing uses is likely the only option.) ILLEGAL BUFFERS AND SET ASIDES Addressing Subsections 5 and 6 in Article 6~ there is no factual, scientific, or legal basis for a ''minimum buffer" of 150 feet on all shoreline environments. See OSF Comment' Letter. In addition, there is no basis for the 80% "vegetation rctention" requirement within the specified buffer. These types of generic set-asides have been struck down. See Citizens Alliance v, King County discussed in the OSF Comment Letter. In Subsection 3, "Regulations, Exemptions to Critical Area and Shoreline Buffer Standards," the imposed standards are too limiting. A building area of only 2500 square feet and driveway of not more than 1100 square feet would mean that long and narrow lots would not be able to be developed at all. ,The lot aggregation requirement is also unCOllstitutional and inconsistent with Comprehensive Plan polices protecting and recognizing "existing lots ofTeCOrd as legal lots." Plan, p. 3-4. The 30 foot setback from the high water mark is supportable. Setbacks oftms nature in my opinion will probably survive legal attack, but I cannot make the same statement for the proposed 150 foot generic shoreline buffer. My clients do not believe that the 80% of the buffer area between the structure and the shoreline be maintain.ed in a naturally vegetative condition for non-conforming lots would pass legal test - it docs not. Stating as much, they do not object to ,maintaining native vegetation when feasible. I Planning decisions must be "consistent with tlle intent of the Comprehensive Plan!' Plan, p. t-16. The Plan protects non-conforming u.ore."l and allows them to be replaced Or expanded. Plan, Goal LNG 8.0, Plan, p. 3-54. According to the Comprehen...ivc Plan, "a legal nonconforming use way change to a different non-confonning use of equal or les."l intensity," Policy LNP 8,7. Plan, p. 3-55. The current approach is inconMistcnt Mth Comprehensive Plan policies. [9006S.1] 01-28-09;17:20 13603794451 --# 11/ 16 ~RT'~""E,-<:j'" .'" " , ' . . I: ' CENVED Jefferson County Planning Commission January 28, 2009 Page 10 ,JAN 2 8 2eeS JHffHSDN COUNlY OCD Turning to Subsection 4, '~egetation Conservation," the science does not support imposition oflarge vegetated butlers on marine areas. See OSF Comment Letter. The SMA does not provide a mandate or authority to compel new uses or developments as a condition of approval to establish "new vegetation such that the composition, structure, and density of the planned community resemble a natural unaltered shoreline as much 8.'> possible." At most. this can be a goal but not a mandate. My clients do not believe that under the guise of grduting a shoreline exemption, the County can control or prevent exempt developments or "encourage" retentjon ofnatuml vegetation. Thus, under Vegetation Conservation, sub A, "Police.q," more drafting is required. Subsection B. Regulations, Sub 1, the requirement that even exempt uses comply with buffer provisions of the SMP and ICC Chapter 18.22 must be eliminated. Ifleft in, the language precludes what State law allows. The imposed mandates ofa 150 foot generic buffer, and 80% vegetation retention, are much more than a goal- they are preclusive and regulatory. There is a hia.~ against docks, even exempt docks assodated with a single-family residential use. See RCW 90.58.020(3)(c)(vii). Staffurgcs that the Commission establish a policy that the "proliferation of these docks should be prevented." This approach is not consistent with the SMA. The co-urts have ruled that private facilities which provide access fur private individuals meet SMA priorities for public access to the waters of the state, since private property owners "arc part ofthe public." See, Jefferson County v. Seattle Yacht Club, 73 Wn. App. 576, 589-90, 870 P .2d 987 (1994). The Shoreline Hearings Board noted in a case involving approval of construction of a dock on Bainbridge Island that: Here we are concerned with the building of docks, a generally favored type of shoreline development and the impact of allowing this on public access, another priority item. Of course, these private docks in a limited way improve access - the Hammer dock in particular, since it is to be a joint use facility [shared by two property owners]. The Supreme Court long ago declared the construc;:tion of private docks under the SMA to be a beneficial public usc:1 ofilie state's shorelines: [D]ne afthe many beneficial uses of public tidelands and shorelands abutting private homes i:f the placement qf'prlvate docks em ,vuch lands so homeowners and their guests may obtain recreational access ta nu:vigable waters. No expression of public 2 The DOE Guidelines l!imil~rIy recognize docks and piers 8."lsocil1lted with a single-family home a.~ water dependent preferred uses: "as used here. a dock associated with a 9tng/e-.f(lmi~y re.yidence i.1f a water dependent use provided that it is dO!lJigned and intended as a facility for llCces.'l of watercraft and otherwise complies with the provisions of this section." WAC 173~26.231 (h). The State Guidelines accord water dependent uses a priority. [90065-1 j 01-28-09;17:20 ,J 13603794451 ~ # 12/ 16 Jefferson County Plamling Commission January 28, 2009 Page 11 RECEEVEJD JAN CJl 0 "'1\~1" ."11 {,J 0 L;';U;z>; JEffERSUN COUNTY DCD policy has been directed to our attention which would encourage water uses originating on public docks, as they do, while at the same time discouraging any private investment in docks to help promote the use of public waters. Caminiti v. Boylet 107 Wn.2d 662, at 673-74, 732 P.2d 689 (1987) (emphasis added). Some balance is in order. Private docks provide significant access to the waters of this state for the public. Boat launches, docks, piers, floats, marinas and mooring buoys all encourage recreational use and access. It is acknowledged that there will be some impa.cts with construction aq,d use of these facilities, hut under modem regulatory requirements, these are minimal. See asp Comment Letter. The length limitation of60 feet measured horizontally from the ordinary high water mark is extremely restrictive. See Draft, p. 7-1 O. Under most local conditions these standards would likely preclude any shoreline owner from reaching "blue water." Thus, it would be expected that boats would routinely ground and the facilities would be useable only for certain periods ofthe year under favonible tide conditions. A better approach is to allow doeks to extend to a certain point in relation to the line of extreme low tide, minus 4.5 feet, such as four teet below -4.5. Other jurisdictions, such as the City of Bainbridge Island utilize this approach. The balance envisioned by the SMA anticipates that there will be some impact to shoreline areas by development. because alterations oftha natural conditions of the shorelines must be recognized by Ecology. RCW 90.58.020. See, Bigger.'i, P .3d' at 22 ("The SMA embodies a legislatively dctcnnined and voter-approved balance between protection of the 'state shorelines and development"" As part of our carcful management of shorelines, property owners are also allowed to construct water-dependent facilities such as single-family residences, bulkheads, and docks."). SUORELINE ARMORING There are significant probleJ:I1S with Article 7, which commences at p.7.28 of the Draft. It is noted that Policy No. 1 states that "because protecting ecological functions is a primary goal of the Shoreline Management Act. the County should take active measures to preserve natural or unaltered shorelines and to prevent the proliferation of bulkheads and other fonns of shoreline amiory.:n This view skews the SMA policies, elevating one policy over others, including those which allow the alteration ofthe shoreline to provide public benefit..:: associated with priority or preferred uses. It also exhibits a strong prejudice against shoreline annoring without analysis whether ex.isting regulatory systems adequately protect the environment. Modem sys1etns which mandate better location of bulkheads and shoreline annoring act to prevent the horror stories seen in the past. where large fills and seawalls were allowed well below the ordinary high water mark, with attendant significant adverse impacts. See OSF Comment Letter. [90065-1] 01-28-09; 17:20 13603794451 ;'~'I # 13/ 16 RECEIVEID~> Jefferson County Planning Commission January 28l 2009 Page 12 ,n1 ~ t:u. CjI C' "fU(" ~ fi~~ l,; Lii.i L!~~ JHHRSUf~ CO~NTY Den Because the SMA allows single t'amily owners a protective bulkhead where necessary, it is unclear under what authority Staff urges that the Planning Commission adopt a policy that proponents of new shoreline use and development, "including preferred Uses and uses exempt from pennits,Ushould plan, design and locate, and construct and maintain lhe use/development to avoid any structural annoring works. Existing SMA and GMA authority does not allow the setback of new homes such to absolutely say all circumstances avoid the need for shoreline annoring forever. The State Guidelines only state that new residential construction "should be located and designed to avoid the need for future shureline stabilization to the extent feasible." WAC 173-26-231 (3)(u)(iii)(A). This language is not mandatory. In addition, the SMA does not explicitly prohibit the protection of propelty itself without regard to the threat to homes and appurtenant structures. It is questionablc whether the County has authority to tell property owners of undeveloped shoreline lots that over the next century they can be expected to donate 50-1 00 feet of their property for perceived environmental benefits with no compensation or right of protection. There is no need to require a conditional use permit for normal protective bulkheads in the other shoreline environments, particularly the Shoreline Residential and High Intensity environments. There is also a conflict with the language and,fue SMA. The proPt')sed use regulations prohibit shoreline armoring to ''protect new residential developments." However. the SMP allows such mmoring under the SMA exemptions, including new construction of new bulkheads. In this regard, the SMA provides that the construction of a "normal protective bulkhead common to single fmnily residences" is not considered a substantial development but exempt. RCW 90.58.030(3)(e)(ii). See a/so Draft SMP, pp.9-2, 9-3. Some thought could be given to allowance of "hybrid" structures, which contain elements of "hard" and "soft" protection. The County should explicitly state that hybridS fall within the SMA exemption for a "normal" or "common" bulkhead associated with a single-family residence. According to the Draft SMP, new structural shoreline armoring is pennitted only to protect a lawfully established primary structure, such as a residence, that is in "imminent danger of loss or substantial damage from erosion caused by tidal action, currents, or waves." The regulatory standard in the SMA due~ not have such preclusive language, allowing '~onnal protective bulkheads" common to single-family residences. It is not common to await protection of a home or property until the risk is "imminent." The State Guidelines use the terms "significant possibility of darnage.'l WAC 173-2--23(3)(a)(iii)(D). and defer to Ii geoteclmical engineer to make the call. My clients totally oppose the draft language that a "hareI" bulkhead is not allowed without showing that other alternatives are "infeasible or insufficient." The Comprehensive Plan at most establishes a preference for non-structural methods, Plan, p. 8-24, as du the State Guidelines. "Those terms have been interpreted by somc jurisdictions as a mandatory 190065-] 1 ;.;'1. 01-28-09;17:20 13603794451 # 14/ 16 J effersoll County Planning Commission January 28, 2009 Page 13 requirement that other techniques first be utilized, then demonstrated to fail, before a hard protective bulkhead is allowed. This is a dangerous and expensive approach. A better approach is to encourage hybrid strueturc.."l and defer to a site specific report if it justifies the need for a new structural bulkhead. In this regard, the Dea1l SMP requires extremely detailed information from an applicant. See pp.1 0-3, 10-4. The standard found on p.7-32 of the Draft, that the County will require applicants for new or ex.panded shoreline structural armoring to ''provide credible evidence of ero$ion;' as the basis for documenting that the primary strut-ture is in imminent danger from shoreline erosion caused by tidal action, currents or waves" is disrespectful and vague. A geotechnical report in Washington State must be stamped by a licensed and registered professional engineer. There is no basis for Staff to second guess these tcchnical reports as to their "credibility." As an exempt development, a proposed protective bulkhead mu.'3t be approved if it complie... with provisions in the County's Shoreline Master Program ("SMP"). RCW 98.58.140(1); see also, Biggers v. City of Bainbridge Island, 162 W n.2d 683, 697-98, 169 P .3d 14 (2007). This is a mandatory provision. Jd. See a180 Advocates For Responsible Development v. Johannessen and Maaon County, SHB No. 05-014 at *9 (2005), citing RCW 90.58.030(3)( e){ii) and WAC l73-27-040(2)(c). As the Supreme Court stated in the Biggers case: The SMA also recognized there is an important function performed hy structures that protect shorelines. The legislature's 1992 amendments to the SMA further emphasized this need fOf certain shoreline structures to provide for the protet.1:ion of shorelines. This conclusion is illustrated by the SMA's provisions requiring prompt adoption ofSMP's provisions requiring prompt adoption OfR.., E" . CEiVE\ ' D" SMPs and shoreline structure permit processing. J " ' ,j ," )1 The SIMA contains an express ~'preference" for issuing such pennits. RCW90.58.100(6). Thus, the SMA also requires that all SMPs contain JA~ 2 3 2009 methods to achieve "effective" and "timely" protection for shoreline landowners. Id. SMPs mw.1: provide for "thc issuance of methods such JHHRS~N COUNTY nrn as construction of bulkheads . . .." Id. Pemrit application to local ~ L governments must be processed in a timely manner. See id. *** The desirability of some t;horeline structures is further evidenced by the requirement that SMPs include exemptions from permitting requirements for certain structures. See RCW 90.58.030(3)(e). Activities CXettlpted from the "substantial developmene' pcrmit requirement include the installation of a protective bulkhead for a [90065-1] 01-28-09;17:20 13603794451 # 15/ 16 RECEJRVED . Jefferson County Planning Commission January 28, 2009 Page 14 JAN 2 8 Z'ij~ JHffP.sU~ COUNTY DCn single family home, maintenance and repair of existing structures, and construction that is necessary for agricultural activitie.",. See RCW 90.58.030(3)( e)(i)-(iv). 162 Wn.2d 697-698. Turning to the regulations for primary residences found in the Draft starting at p.8-27, article 8, the Mr. and Mrs. Dahlgrcn can find no language in the SMA giving thc County authority to prohibit residential development under circumstances where it can "be reasonably expected to require structural shoreline annoring during the useful life of the structure or one hundred (100) years, whichever is greater." This language should be stricken. V ARIANCES/REASONABLE USE EXCEPTIONS My clients have significant concems as to the Variance Permit criteria. For one, no allowance for variation or change of use is allowed. (Draft, pg 9-7) Two, any alteration or expansion ofnon-confonning structures, including single family residential homes, is handled under the variance procedure. For exempt facilities such as single family homes, alterations should be allowed. Third, reasonable use exceptions are handled as variances. This is . inappropriate. This approach will simply expose the County to regulatory taking claims, since the variance criteria arc so strict The County must enm.i ill the SMP a standalone provision for issuance of rem;onable use exceptions. PERMIT ADMINISTRATION Mr. and Mrs. Dahlgren note that the minimum permit application requirements set out in pp. 10-3, 10-4 of the Dmft, are extremely onerous. In particular, it would be expensive for applicants to provide information as to existing land use contours a.nd intervals ~~sufficient to accurately determine the existing character. of the property." In addition, provision of a description of the "existing ecological functions and processes effecting, maintaining,. or influencing the shoreline at/near the project site" will be expensive. It is respet.ifully submitted that the Planning Commission should work with staffto come up with application requirements that differ between a major and minor proposal. Section 10.8 places the burden of proof on the applicant throughout. This means the onus is placed on the applicant to determine what environmental designation their property is to be regulated under, a complex and expensive site-specific scientific Judgment process, all for the privilege offinding out what uses are Or are not allowed. A process should be put in place to allow property owners to challenge thc shoreline envirolllnental designation assigned to a parcel. Turning back to non-conforming development and uses, this is a key provision, since under thc draft proposal, essentially all of the built shoreline environment in Jefferson County [9006S.1} ~.. 01-28-09; 17:20 13603794451 # 16/ 16 ~ Jefferson County Planning Commission January 28, 2009 Page 15 will be turned into a non-conforming development if the 150 foot marine buffers and vegetation set asides are adopted. It is noted that non-conforming structures. "other than non-conforming single family residcnces," cannot be expanded or enlar,ed without obtaining a variance, or be brought into conformance with the new requirements. These provisions do not provide as much protection to existing single family homes as might be thought. For one, the Draft requires conditional use pennits lor single family homes in a number of the shoreline environments. In such case. the existing residences are required to be brought up to the new requirements. Where enIargements~ expansions or additions are allowed to existing single family homes, they cannot extend water- ward of the "existing residential foundation walls." (Draft, 10-8) In addition, the alterations or additions cannot "adversely affect critical areas." If the new buffers are imposed, these will likely be deemed critical areas, thereby precluding any expansion or alteration of any existing single family homes. This section requires a substantial amount of work in the opinion of Mr. and Mrs. Dahlgren. Thank you for your kind attention to these comments. Very truly yours, DENNIS D. REYNOLDS LAW OFFICE . "j Il ~ Jf(,~ Dennis D. ReynoldJ cc: Scott and Erin Dahlgren R-,E,.~",fJC"E~TV,:'lYn,' .\U . 'I- J)l "W' nu DDRlcr JAM 2 8 2i]~~ JEffERSON COUNTY DeD 3 The Comprehensive Plan has a goal, LNG 8.0, to "support the continued existence and economic viability of legally Cs'tablished land uses which become I1Qnconfonning.. .... Plan, p. 3-54. Existing commercial and industrial uses "should be allowed to e-x;paud or be replaced...." Policy LNP 8.3, Plan, p. 3-54. TheDmft SMP violates these pl'Qvjsions. Policy LNP 8.9 allows replacement of a de.trtroyed non-conforming stmcture, but tho Dmft SMP does not, imposing a '75% limit." Once again, there is an inconsistency. [90065-1] >j,~.